Selesho N.O and Another v Mangoejane and Others (1372/2024) [2024] ZAFSHC 302 (3 October 2024)

Selesho N.O and Another v Mangoejane and Others (1372/2024) [2024] ZAFSHC 302 (3 October 2024)

The court found that the applicants, as trustees of the Leagang Family Trust and equal shareholders in the holding company, had locus standi to seek interim interdictory relief to protect the assets of the third respondent. The first respondent, as sole director, had made fraudulent and unlawful payments from the third respondent's bank account for her personal benefit, which were uncontested due to the absence of answering affidavits. The court accepted the applicants' allegations as established facts and held that the interim order was appropriate to maintain the status quo pending the institution of legal proceedings, including a derivative action under section 165 of the Companies...

Citation
[2024] ZAFSHC 302
Parties
Applicant: Masikilo Florence Selesho N.O.; Applicant: Izak Jacobus Marius van Zyl N.O.; Respondent: Kelello Moroesi Alphonsina Mangoejane; Respondent: Marematlou Group Holdings (Pty) Ltd; Respondent: Jenn Training and Consultancy (Pty) Ltd; Respondent: Marematlou Training Institute (Pty) Ltd; Respondent: The Standard Bank of South Africa Ltd; Respondent: Kelello Moroesi Alphonsina Mangoejane N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 October 2024
Case Number
1372/2024
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Confirmation of Interim Interdict
Outcome
Rule nisi confirmed (excluding paragraph 2.3 and with amendment to paragraph 3); costs awarded against first and third respondents.
Judges
Daffue
Legal Topics
Derivative Action, Fiduciary Duties of Directors, Interim Interdict, Locus Standi, Protected Disclosures Act, Reflective Loss
Commercial and Corporate Civil Procedure Derivative Action Fiduciary Duties of Directors Interim Interdict Locus Standi Protected Disclosures Act Reflective Loss

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Parties

Masikilo Florence Selesho N.O.

Applicant

Izak Jacobus Marius van Zyl N.O.

Applicant

Kelello Moroesi Alphonsina Mangoejane

Respondent

Marematlou Group Holdings (Pty) Ltd

Respondent

Jenn Training and Consultancy (Pty) Ltd

Respondent

Marematlou Training Institute (Pty) Ltd

Respondent

The Standard Bank of South Africa Ltd

Respondent

Kelello Moroesi Alphonsina Mangoejane N.O.

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Confirmation of Interim Interdict

Legal Issues

  1. 1 Whether the applicants, as trustees and shareholders, have locus standi to seek interim interdictory relief to protect the assets of a related company.
  2. 2 Whether the payments and withdrawals from the third respondent's bank account by the first respondent were fraudulent and unlawful.
  3. 3 Whether the interim order granted ex parte should be confirmed, amended, or discharged on the return date.

Ratio Decidendi

The court found that the applicants, as trustees of the Leagang Family Trust and equal shareholders in the holding company, had locus standi to seek interim interdictory relief to protect the assets of the third respondent. The first respondent, as sole director, had made fraudulent and unlawful payments from the third respondent's bank account for her personal benefit, which were uncontested due to the absence of answering affidavits. The court accepted the applicants' allegations as established facts and held that the interim order was appropriate to maintain the status quo pending the institution of legal proceedings, including a derivative action under section 165 of the Companies...

Court Disposition

Rule nisi confirmed (excluding paragraph 2.3 and with amendment to paragraph 3); costs awarded against first and third respondents.

Orders

  • The rule nisi dated 11 March 2024 is confirmed, excluding paragraph 2.3 and subject to amendment of paragraph 3 as set out in the judgment.
  • Paragraphs 2.1 and 2.2 shall serve as interim interdicts with immediate effect pending institution, within 60 days from finalisation of this application, of action, application, or other legal relief against the first respondent and/or any other respondents.